Case No. 90SA514 Thornton v. Fort Collins

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830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 2 4. WATERS AND WATER COURSES C= 139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Concurrence of intent and overt acts qualifies as "first step" toward appropriation of water, and date upon which first step is taken determines date of appropriation. of manifesting necessary intent; however, act preceding both formation of necessary intent and act manifesting that intent may be relevant because that act may be deemed to have performed either or both of remaining required functions: demonstration of substantial step toward application of water to beneficial use, and notice to interested parties of nature and extent of proposed demand upon water supply. 5. WATERS AND WATERCOURSES (Z;= 139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Act which manifests necessary intent to appropriate water to beneficial use, or which demonstrates taking of substantial step toward application of water to beneficial use, or which constitutes notice to interested parties of nature and extent of proposed demand upon water supply is "overt act" for purposes of "first step test" for appropriation of conditional water right; single act need not perform all three functions, as long as all three functions are performed by some act or acts. See publication Words and Phrases for other judicial constructions and definitions. 6. WATERS AND WATER COURSES (2: 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. For purposes of "first step test" for appropriation of conditional water right, act which manifests necessary intent to appropriate water to beneficial use satisfies manifest intent function of overt act prong, as well as intent prong of test. 7. WATERS AND WATERCOURSES X139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Under first step test for appropriation of conditional water right, if relevant act precedes formation of necessary intent, then that act cannot be deemed to have performed first required function 8. WATERS AND WATER COURSES (°=139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. "First step" toward appropriation of conditional water right can never be completed before formation of necessary intent, and appropriation date of conditional water right cannot be set earlier than formation of requisite intent and act which manifests that intent. 9. WATERS AND WATERCOURSES G� 139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. Filing application for conditional water right may constitute evidence that necessary intent to appropriate water has been formed, and if so, filing also was relevant act which performed first required function of manifesting necessary intent. 10. WATERS AND WATER COURSES E` 139 405 - - -- 405VI Appropriation and Prescription 405k139 Time of vesting of rights under appropriation. Colo. 1992. It is doubtful that filing application for conditional water right can be deemed, in and of itself, to have performed second required function under "first step test," the taking of a substantial *915 step to put water to beneficial use; other overt acts would normally be required. 11. WATERS AND WATER COURSES � 135 405 - - -- 405VI Appropriation and Prescription 405k135 Diligence in completion of works or application of water to use. I 13 • • • Copyright (c) West Group 1999 No claim to original U.S. Govt. works